A Remarkable (Unpublished) Federal Opinion

This wikilog article is a draft, it was not published yet.

by: Ryan Scott • April 26, 2018 • no comments

The opinion can be found here.

It starts with a bang:

Ohio State Trooper Hartford knew three things about Tyrone Warfield before stopping his car. He knew that Warfield, having recently exited a construction zone, was driving under the speed limit with both hands on the steering wheel. He knew that Warfield had touched the lane line twice. And he knew that Warfield was black.

There is a lot of worthwhile discussion and analysis of the traffic stop. This part stood out to me.

Warfield’s driving was far from erratic—he was driving under the speed limit with his hands properly positioned on the steering wheel. Warfield’s only mistake was his failure to follow a perfectly straight line down the highway. Id. at 466. This is insufficient to suspect Warfield of driving under the influence. A different holding would subject many of us to regular invasions of our privacy.

But wait, says the government: Aren’t Warfield’s slow speed and rigid position other indicia of drunk driving? We think not.

And then there's this summary of the government's position in this and other cases:

Three instances of lawful driving cannot, when viewed together, transform into illegal conduct. Thus, this case involves a suspicionless traffic stop where the officer initiated his interaction with Warfield based on legal driving. Because of this, Warfield argues that his vehicle was stopped because of his race. He bolsters this argument with Trooper Stroud’s troubling revelation that drug dogs, like the one used during Warfield’s traffic stop, are used more frequently when the driver is a person of color. An officer can stop a driver for whatever reason he wants so long as he can give an objective justification after the fact. Whren v. United States, 517 U.S. 806, 812–13 (1996); United States v. Ferguson, 8 F.3d 385, 388 (6th Cir. 1993) (en banc). That justification must include specific reasons for why the officer was suspicious that person was breaking the law. See Whren, 517 U.S. at 813. While the law allows pretextual stops based on minor traffic violations, no traffic law prohibits driving while black. The protections of the Fourth Amendment are not so weak as to give officers the power to overpolice people of color under a broad definition of suspicious behavior.

Accepting the government’s arguments that Warfield’s driving was suspicious would drain the Fourth Amendment of any meaning. Here, the government argues that Warfield could be pulled over for, essentially, driving too cautiously. It finds fault in Warfield’s “rigid position,” yet in other cases the government justified a stop in part because the defendant was slouching. Gross, 550 F.3d at 580. It says that it may stop Warfield for driving below the speed limit, but the government has also argued that it can pull over a driver for driving a mere two miles per hour over the speed limit. United States v. Akram, 165 F.3d 452, 454 (6th Cir. 1999).

And it says that Warfield’s nervous, shaking hands are indicators of supposed criminal activity, even though it has also cited overly deliberate, rehearsed conduct as suspicious behavior. See United States v. Hill, 195 F.3d 258, 262 (6th Cir. 1999).

In sum:

A driver’s conduct need not be the Platonic ideal of good driving to avoid a stop by a police officer. Indeed, the Fourth Amendment allows “police officers to stop vehicles for any infraction, no matter how slight, even if the officer’s real purpose was a hope that narcotics or other contraband would be found as a result of the stop.” United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (abrogated by United States v. Noble, 752 F.3d 509 (6th Cir. 2014), on other grounds); Freeman, 209 F.3d at 470–71 (Clay, J., concurring). But “we have a duty to see that the authority is not abused.” Mesa, 62 F.3d at 162. A different result in this case would neglect our duty and would allow the police to stop you, demand your identification, check for outstanding warrants, and call for a drug dog—even if you are doing nothing wrong. The stop of Warfield’s car was not supported by probable cause or reasonable suspicion of drunk driving.

And one final observation by the court:

While not necessary to our holding, we also find troubling the extension of the traffic stop to purportedly investigate trafficking in untaxed cigarettes with a drug sniffing dog. Even if the stop had been lawful, there was weak evidence of trafficking in untaxed cigarettes to extend the stop beyond the field sobriety test. See Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). While Ohio law prohibits retailing untaxed cigarettes, possessing eight cigarette cartons, which is all that Hartford could view in the back seat of the car, is not inherently illegal or even suspicious. See Ohio Rev. Code § 5743.112. And there is nothing in the record to suggest that Hartford could see that any of the cartons were missing the required tax stamps. Nor was this possession made suspicious by Warfield’s statement that he did not smoke “a lot.” The cigarettes could have been for Warfield or his passenger’s personal consumption regardless of Warfield’s smoking habit. It is common to purchase consumer items, including cigarettes, in

bulk when they are available at a cheaper price.